Catholics Embrace Gay Rights

New research from Barna shows a massive shift underway in the way “practicing” American Catholics see gay rights. The study compares views of practicing Protestants too. The most interesting number is talked about here, focusing on the difference between what American Christians are willing to accept legally, versus what they consider moral:

Despite the significant social acceptance the LGBTQ community has achieved in recent years, the Barna study reveals the gap between what Americans are willing to allow legally and what they believe is morally acceptable. Overall, 37% of Americans say same-sex relationships are morally appropriate. This represents an increase from 30% of Americans who embraced this view a decade ago.

Yet even with a surge of legal changes for the LGBTQ community, nearly six out of 10 Americans today do not view same-sex relationships as moral. While most measures of support for the LGBTQ community have reached majority status, a minority of Americans is willing to condone such relationships from an ethical standpoint.

Practicing Catholics are some of the most likely to have changed views on this question. Their support for the moral acceptability of same-sex relationships has nearly doubled in the past decade. Atheists and agnostics and those who embrace a faith other than Christianity have grown, too, in supporting the moral legitimacy of same-sex relationships. For their part, practicing Protestants have moved so little (from 12% to 15%) that it is within the range of sampling error.

Of course you have to ask what one means by “practicing.” For purposes of this poll, Barna defined practicing somewhat loosely:

“Practicing Christians” include self-identified Christians/Catholics who have attended a church service at least once in the last month and who agree strongly with the statement “your religious faith is very important in your life today.”

It’s fairly standard for orthodox Catholics to point out when confronted by statistics like this that it’s debatable how serious one should take the Catholicism of a person who goes to mass so infrequently, given that the faith requires its adherents to attend mass weekly, on pain of sin. If you restricted “practicing Catholics” to weekly massgoers, you’d see a number a lot more like the Protestant number, I’m betting.

That said, I think it’s fair to ask what kind of influence the less-committed Catholics who still count themselves as part of the fold will have on the flock, given the strong pressure from the secular world to liberalize on homosexuality. The Catholic Church has not changed its teaching on homosexuality. Why have the numbers collapsed among people who strongly identify themselves as religious Catholics, and who go to mass at least once a month?

Another interesting figure from the Barna study, looking at Evangelicals as a subset of Protestants:

Among the Barna-defined evangelical segment, most of their attitudes on LGBTQ issues have not changed much since 2003—in fact, they are the one group that has become more resistant toward LGBTQ concerns on several fronts. This includes:

Evangelicals remain very unlikely to favor changing laws to support LGBTQ lifestyles (declining from 12% in 2003 to 5%).

They continue to be extremely supportive of defining marriage as one man and one woman (inching up from 90% to 93%).

And they roundly reject the moral acceptability of same-sex marriage (up from 95% to 98%).

The only area in which evangelicals have become more willing to support LGBTQ causes in the last decade has been their slight increase in favoring adoption by same-sex couples (from 12% to 18%).

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87 Responses to Catholics Embrace Gay Rights

The collapse in Catholic support for traditional sexual morality began many years ago, and it started, I think, among moral theologians, professors, priests and sisters. I was in a college seminary in the late 70s. Traditional teaching on sex was not taught in theology classes, in formation classes, or in the confessional (I was scolded several times for confessing that I masturbated). The only book on sexual ethics that was used in my college Theology class was one that was published in 1976 or 1977 which approved of premarital sex among committed adults, masturbation and birth control. Priests went to the leather bars on weekends, and straight seminarians often went to watch XXX movies. Everyone just laughed about it. When I was 18, a priest wrestled me to the ground and started touching me. When I reported the incident, I was called homophobic. Similar incidents, which I did not report, happened with other seminarians. Eventually I was refused entrance to the novitiate: two of the reasons were that I was too traditional and too homophobic.

The loss of traditional moral teaching began among the formators of religious life, moral theologians and the priests and sisters they taught.

I imagine that the answer is more mundanely sociological than theological. The immigrant Church of the 30s-50s did a great job of educating their young. For my family it was through the Jesuit schools. This made the adults and their equally well educated kids in the 1980s etc. professionally successful and suburban and middle class- the very demographic that has embraced gay rights at an escalating pace in the last decade. Frankly, I would have been shocked to find a distinctive Catholic view on gay marriage any more than on contraception or divorce. Traditional Catholicism is a victim of its own educational success.

I wish the answer were to be found in the theological debates, which I find to be vastly more interesting than the economic and educational trends among Irish and Italian immigrants; but I don’t think the theology has much to do with it one way or another. I imagine that if you ask the polling geeks they’d tell you that there’s no such thing as Catholic voting patterns either.

What interests me is the Catholics who disagree with a pretty fundamental teaching of their own Church on the moral status of homosexuality, and how quickly that number has risen, as it has either remained steady or gone the other way among Evangelicals

It would be interesting to see the breakdown for Catholics who do attend mass every Sunday, but–as a number of people have noted–there are significant differences not only between the cultural association with Catholicism vs. Evangelicalism, but also the ecclesiology of the two. If I were a Protestant who disagreed with teachings that were considered important by my denomination, I don’t see why I wouldn’t just go be Methodist or ELCA or something. But as a Catholic I feel like when I struggle with a teaching (like I have with Humanae Vitae), I think it’s my responsibility to stay and struggle and not an okay solution to just go be Episcopalian (even if that were otherwise appealing to me).

Beyond this, the points that others have made about contraception and the fact that most Catholics disobey the teaching (and teachings about premarital sex too, I’d guess) plays a role. It’s true that there’s a difference between disobeying and rejecting the teaching, but I also think people feel confortable making a demand of others that is not demanded of you (i.e., having no opportunity for a marriage-like relationship). This is also related to how the church in the US uses annulment.

I’d also be interested in what the results are if you correct for geographical location. Evangelicals are probably more likely to live in conservative areas and so their views of homosexual acts are going to be largely consistent with their societies. That’s not so for Catholics, and it probably makes a difference.

1. American Catholics seem to accept that there can be a gap between what is deemed to be “moral” and what is legally acceptable. After all, any practicing Catholic will (o should) tell you that divorce is immoral, at least under the circumstances of most divorces that occur in the US today. But practicing Catholics are not beating down their representatives’ doors to enact laws restricting access to a civil divorce decree.

2. Evangelicals are much less accepting of any gap between what is deemed to be “moral” and what is legally acceptable. The article suggests that there’s been hardening on this stance among evangelicals. I doubt it. I suspect that those who disagree have merely abandoned evangelicalism for another movement whose views are much less unforgiving.

Conclusion: Catholics are comfortable being a minority, and have little expectation that their religious views will be reflected in the country’s civil laws. Evangelicals, in contrast, believe that they are the rightful owners of the country, and expect their views to be given deference by the civil authorities.

I have more than a dozen evangelical friends who have left evangelicalism for Rome within the past year. While all provide various reasons for their defection, there is at least one common denominator: They were sick and tired of the evangelical obsession with the Culture Wars, and particularly the outlandish and dishonest manner in which evangelicals have sought to address issues surrounding same-sex marriage.

If evangelicals can’t adjust to being a minority within the culture, and can’t let go of the fantasy that they are the true rightful owners of the culture, then the movement is going to die. But as the pressures to change have become sharper, the movement seems to have doubled down, purged itself of the faint-hearted, and stocked up on David Barton books. It’s “Christian America or Bust!”

Bobby, conservative Catholics have been as much a part of the Culture Wars as have conservative Evangelical Protestants, especially when it comes to the pro-life movement and opposition to gay marriage. The Roman Catholic Church was one of the biggest contributors, along with the LDS Church, to the pro-Proposition 8 campaign in California, which made gay marriage illegal there at the time. This is why a lot of Catholic and Mormon churches in California were vandalized by radical gay rights activists.

Now I will admit that conservative Evangelical Protestants have developed a reputation, whether deserved or not, of being more reactionary in their beliefs than Catholics are. This may be because Catholics are much more diverse in their individual beliefs than are individual conservative Evangelical Protestants. But this may not matter to many liberals and secularists, who often complain that the Catholic Church’s hierarchy continues to be too rigid in its doctrine and beliefs.

You seriously don’t see an equal protection violation when the government awards substantial rights and privileges and status to straight couples, but not to gay couples? How about if the government only let white couples marry, but not black couples, or mixed-race couples?

I’m one of those who believe the “religious liberty” angle is way overblown, and Rod’s fears on this score border on paranoia — but I recognize that there are individual would-be plaintiffs and occasional off-the-wall magistrates who fulfill all Rod’s fears. I’m just confident that no appellate court will leave their muddled meanderings unvacated, because I know what 200 years of First Amendment jurisprudence establishes.

As to the above questions, (1) no I don’t, and (2) the cases are not remotely analogous.

You can only get to an “equal protection of the laws” argument if you assume that male and female are artificial cultural constructs. But they aren’t. If we were not each EITHER male OR female, or in a very unfortunate and very small number of circumstances, stuck in a warp of mixed signals, but mixed MALE and FEMALE signals, this debate could not exist. Male is a real condition, female is a real condition.

Male and female are fundamental to sex. Sex is by nature and origin heterosexual. Homosexuality is an outlier, a byproduct, and as far as the general community is concerned, rather irrelevant. That has nothing to do with whether it is intrinsically evil.

Marriage laws are designed to regulate, license, and tax (or negatively tax) one specific human relationship, one that inherently and intrinsically connects male to female. ANY male can enter into marriage, as can ANY female, assuming they have a willing partner. ANY male, and ANY female, have the option to remain celibate, to live together without benefit of marriage, chastely or conjugally. ANY male and ANY female has the option to live with a partner of the same sex, chastely or engaging in what has been termed “gay sex,” I won’t call it conjugal.

Skin color is not of the essence to sex. Sex IS ipso facto of the essence to sex. The fact that some individuals want something other than what the law regulates as marriage does not even begin to establish that anyone has been denied “the equal protection of the laws.”

If you have to wrap yourself in an “identity” in order to even claim unequal treatment, you have shot down your own argument. People designated as “colored” wanted the freedom to do exactly the SAME THING as “white people” could do. Heterosexuals DON’T want the same thing as homosexuals want. They want different things. That’s why we have different names for them.

Marriage is not a bundle of benefits. Its a set of laws regulating the relation of male to female.

But even if it WERE a valid equal protection argument, churches have a right to teach that homosexuality is sinful, just as they have the right to teach that drinking alcohol is sinful, consuming pork or shellfish is sinful, wearing make-up is sinful, women wearing pants in church is sinful, etc. etc. etc. Its called church autonomy in matters of faith and doctrine.

If true, it just shows how utterly ignorant many Catholics are about the teachings of the Church or how many of them have little sense of doctrinal integrity. A cultural Catholic is no Catholic at all, at least in a truly efficacious way. Catholicism has survived all the challenges presented by culture since its begining. Its not just a medieval system that needs a medieval culture, it began before and it survived beyond. The present culture in which people think sodomy is just peachy will come and go just like all the crap we’ve had to put up with before.

Part of it is educational, we used to do a good job with catechetics but regardless of how good the program is, people tend to go where the money is. Folks tend to be very religious when the going is tough, but once they break into the status quo, that piety generally gets tossed. The worst thing we’ve done in this country was to work so hard to be accepted as “mainstream”. In this case, success is a curse.

When I was a seminarian (~4 years ago), I always got a kick out of hearing the religious ramblings of professional type folks. One might be able to do brain surgery or argue a case before the state Supreme Court but all of that is quite irrelevant when it comes to knowing anything about the religion one supposedly professed. In my experience, it was pretty rare that laymen had any intelligent reason for dissenting against the Church, they just whored their beliefs out to whatever peer group they wanted to get ahead in.

If you want to hear Catholic orthodoxy in a sermon and want to meet Catholics who actually profess what the Church teaches, you usually have to find a traditional Latin Mass parish, a very traditional (Latin, chant, etc) Novus Ordo parish or one of the Eastern Rite parishes.

After reading all the comments so far, I would like to add to my earlier comment with a couple of points:

1. Nobody thinks anymore. Everybody “feels.” I have experienced this when I’ve spoken to otherwise serious Christians (some of them Catholic) about ancient Church teachings on sexual matters, the biblical foundations for those teachings and their connections to ancient Jewish understandings of the nature and purpose of human sexuality, the deeply philosophical understanding the Church has about men and women and the complementarity of our natures which is perhaps most revealed in our sexuality and especially in married love with its dual ordering toward unity and procreation…and people will nod and listen and ask seemingly intelligent questions and then say, at the end, “Well, that’s all very interesting, but I just feel like Jesus understands if my cousin is living with her boyfriend and his kids, and I just feel like it’s okay for people to use birth control if that’s what they want and if they feel it’s fine for them…” etc. ad infinitum. When you throw out reason and “feel” everything, it’s easy to “feel” like gay marriage would be nice for people who want it, and to “feel” like kids don’t really suffer when their mother was a paid third-world reproductive prostitute/incubator whom they will never meet, and to “feel” like marriage can mean man/woman today, man/woman, man/man, woman/woman tomorrow, and that sometime next year we can start talking about numbers other than three–and it’s okay, because nobody really cares what the word or concept “marriage” means anymore so long as everybody feels happy and affirmed in their choices. The corollary to this triumph of the emotions over reason and intellect is that “feelings” are a harsh and illusory master for two reasons: a, because we can easily “feel” like the rational types are just big meanies and we can “feel” like it’s okay to punish them for their insistence that life is about more than what a person feels, and b, because no matter how hard a person “feels” like her boyfriend will always be there in their “committed relationship,” the fact is that his level of committment isn’t even worth the non-existent paper he hasn’t bothered to write up–and in every post gay “marriage” society the overall levels of marriage continue to drop precipitously, because women are great at pretending that their “feelings” about this guy they are with is more important than the lonely reality: that they have not become one flesh, but are still two autonomous selfish individuals who can and will split up at any time. So, of course, lately I’ve seen essays from women who gush that they “feel” like life will be more interesting if they keep their options open and plan on having two or three successive “life partners” who may or may not have any connection to any child or children she (note: she) decides to have and raise. Because, of course, in an age of emotion, when you build your house on sand you have to pretend that it’s exhilarating and fun, rather than cruel and devastating, to wash the foundations repeatedly washed away…

2. Catholics really are abysmally ignorant about their faith. I’m not even going to get into the split hairs “vincible/invincible” question right now–it’s just true that Catholics don’t know what they believe or why they show up at Mass even if they do. On the bright side I’ve met some who so deeply crave real religious instruction that they embrace the least bit of it with great joy; but on the other side, there are those who really are functional heretics for whom the Church is a nice cultural institution without much meaning behind it all.

And I blame the bishops of my youth very, very much (the ones today have inherited the same mess we all have). Here’s a very minor example: today at Mass I sang one of those heretical Communion hymns, Rosario’s “Supper of the Lord,” which contains the dreadful lyrics “Precious Body, Precious Blood, here in bread and wine…” (and that reminds me, I need to mention it to the choir director). What’s wrong with it (as 99 out of 100 Catholics might ask?). Easy. “Here in bread and wine” is the doctrine of consubstantiation, the doctrine that after the consecration both the Real Presence of Jesus AND the continued presence of the substance of bread and wine remain. It is a belief held by some Protestant denominations, but rejected definitively by the Catholic Church during the 12th century or thereabouts as the doctrine of transubstantiation, long held, was formally defined. So why is it in a hymn in the Catholic hymnbooks? Because the last generation of bishops didn’t really bother to check whether or not the hymns presented as suitable for use at Mass were theologically correct. It’s hard to imagine that they (the majority, anyway) even cared. And for all we talk about Catholics who reject birth control, the real problem begins with the reality that Catholics have forgotten Whom the Eucharist really is, don’t understand or don’t fully believe in the Real Presence, and treat the Sacraments like nice backdrops for certain ages and events in one’s life. Once a Catholic has lost faith in the Eucharist, and I think it’s game over as far as their connection to the faith–because if you don’t understand or believe that at every Mass you have the opportunity, if you are free from grave sin, to encounter Christ Himself, Body, Blood, Soul, and Divinity, in the smallest particle of the Eucharist, then why even bother getting up early on a Sunday morning?

Re: . A cultural Catholic is no Catholic at all, at least in a truly efficacious way.

I would be very careful there, because most Catholics (and Orthodox) were only cultural members of the Church down through the centuries. Were the illiterate medieval peasants somehow outside Church because they had no grasp of its theology? Are the Baptists right that the sacraments require intellectual comprehension and we ought cease to baptize infants?

This statistic is endlessly regurgitating without the rather important caveats: It’s actually 98% of Catholic women who are of child-bearing age, sexually active (regardless of marital status), and DO NOT WANT TO HAVE A CHILD who report that they have used contraception at some point in their lives.

There is a deeper reason why Catholics — practicing Catholics — are less riled up against gay rights than evangelicals or Mormons are: Catholicism regards marriage as a great good, but unlike traditional Protestantism or the LDS, the Catholic Church does not regard it as the HIGHEST good, nor is it expected of everyone.

In the Catholic worldview, all sexual activity outside of matrimony is morally wrong. But it’s not the greatest evil in the world, nor is it in any way shocking. Catholicism traditionally has been strict in its insistence on what the moral law is, but extremely relaxed (merciful, actually) in dealing with individuals. This mindset gives rise to its own problems — think of the famous “Latin Laxity” when it comes to men having adulterous affairs in Mediterranean cultures. But it’s also the reason why Catholicism is the opposite of Puritanism.

Where the Church gets dragged in to the culture war on gay rights issues is the Left’s insistence that everyone affirm the moral uprightness of homosexual activity and change the definition of marriage accordingly. This requires clarity: mercy is not the same as indifference to truth.

But you are never going to hear the Church put special emphasis on homosexuality per se. And from the point of view of a Catholic looking at the degeneration and injustice of our society, the deepest and most rampant evil remains abortion, which is the deliberate killing of an innocent human being.

“It’s actually 98% of Catholic women who are of child-bearing age, sexually active (regardless of marital status), and DO NOT WANT TO HAVE A CHILD who report that they have used contraception at some point in their lives.”

Catholicism traditionally has been strict in its insistence on what the moral law is, but extremely relaxed (merciful, actually) in dealing with individuals.

I think this has varied depending on the time and place, but there’s truth to it and it’s related to my response to Erin.

Nobody thinks anymore. Everybody “feel.”

I think there’s an alternative form of this (which I was trying to get at in my post) where people will in theory agree with a teaching, but feel uncomfortable insisting upon it to others. It’s a private/public distinction that may be invalid or inconsistent with what faith demands in some cases, but it’s not actually a rejection of the teachings.

That is, I think the issue with the sexual teachings is that unlike other areas in which people sin, there’s a pressure these days to not just acknowledge and repent, but to say the act is not sinful. Why is not hard to understand–culture matters, first (and you see people compartmentalizing or justifying plenty of non-sexual sins when there are similar pressures to do so), and, second, if it’s something like contraception or premarital sex within a relationship it’s generally not something people plan to stop, so you either gain comfort with living in a way that’s out of step (even if you acknowledge it) or you dissent.

I don’t have a good sense of how people who self-define as committed Catholics in general (among whom I would count myself) deal with these things, because people tend to treat them as private. I think it’s easier, if still troubling, to compartmentalize between moral beliefs and behaviors here (i.e., think the actions are wrong, even if you don’t stop), because there’s the idea that one will one day stop; that there’s not an incompatability between what you think is right and where your feelings are leading you (marriage, say).

But even for people who are in this situation and will still say that they accept the church teachings where incompatible with their own lives (and are simply sinning), there’s a discomfort with applying those teachings to others. First, we know there are many different ideas about morality that are common and certain aspects of Catholic sexual teachings are, quite obviously, neither accepted by the culture at large or even most other Christians today. For example, despite my struggles with Humanae Vitae, I do accept it, but it seems bad manners or worse to assert that others are sinning in ignoring it. (Among other things, something can be objectively sinful yet we can’t say that any individual is subjectively sinning.) So people are couched in how they talk about these things, since they tend to think a lot of people who disagree with them are good people and simply don’t accept their own premises.

With homosexual acts, you add to all this the fact that it seems wrong to judge harshly what people do when they are in positions you are not. So people get into stuff like “wrong for me but not necessarily for you” (which I admit is not sensible moral teaching, but it’s a way of being polite or accomodating in a world where there are strong disagreements about moral matters and the premises on which moral conclusions are based.

So I don’t think that you can assume from the mushy way people talk about these things that they don’t care about the moral issues or Church teaching or whatnot. It’s more complicated.

And thinking about this part of it further makes me think that among the likely reasons for the different results between Catholics and Evangelicals is that Catholics today don’t have the same tradition of seeing people called out publicly as sinners (it probably feels much more harsh to many of us than to people of some other backgrounds). And, more significantly, we have experience of understanding that Catholic moral teachings aren’t necessarily consistent with those of the mainstream culture and tend to live in areas throughout the country where this is especially true. So people are going to fall back on some kind of distinction between even moral teachings they accept and what they feel willing to assert as a strong claim applicable to everyone, whether or not they share the same religious views.

Again, this may be mushy or incoherent, but it’s largely based on a view of what politeness demands and I think should be discussed with some charity, and without the assumption that people who struggle with these issues aren’t real Catholics or aren’t willing to think.

On the other hand, I will agree with you about a couple of things:

Catholics really are abysmally ignorant about their faith.

Yup.

And I blame the bishops of my youth very, very much (the ones today have inherited the same mess we all have).

Yup again. I also think part of this was a reaction by baby boomers or the generation just before to the notion that the Church was too rigid, so they bent over backwards to be otherwise. But the outcome of this, IME, was not a Church that could effectively engage people, but a refusal to engage at all. So for example, as someone who struggled with a variety of things (and comes from a secular world in which argument is common and liberal arguments frequently made quite strongly), when I’d ask a priest about some issue with which I struggled, wanting a strong argument as to why the Church was right, I’d often run up against what seemed a fear that if I didn’t like the answer I’d leave, and thus the assurances it was okay to disagree more than the actual engagement I wanted. To a certain extent I think this arises out of the US Catholic culture more broadly, but I’m going on too long so can’t expand on that now.

You ignore the “at some time in their lives” bit. My suspicion is that the numbers of Catholics who dissent from this teaching is quite high (although “dissent” is too strong , really, as many of these just ignore it or don’t care about it and haven’t bothered to engage with it). But saying 98% of people used it at some point doesn’t mean anything. I’ve done at some time in my life plenty of things I think are wrong.

Sorry, I should have been more precise. The “cultural Catholics/Orthodox” of the past were still functional believers even if much of their motivation to practice was societal expectation. That said, even if they didn’t have a theological grasp of their religion, they often knew it in other ways and through experience of liturgy and private prayer. One need not have a solid grasp on theology in order to be a believer, many peasants of old were stronger believers (in the true sense of the word) than some theologians and clerics of today. That said, we’ve always had the problem of some folks that might claim to be Catholic but didn’t do anything more than the absolute bare minimum for societal approval, or even less.

That said, as far as the Church is concerned, no one is saved because they wear a name. No one is saved merely because they got baptized back when they were a baby and haven’t darkened the door since, or come for certain family functions or like to show up for certain holidays once in awhile.

The Church doesn’t require an intellectual facility with every detail of doctrine but it does require that all of her children live out their sacramental promises in sanctifying grace, striving for holiness in charity. The same requirement sits for the unlettered peasant and for the professor, for pauper and prince.

That is true. Folks like to lay the charge before us that the Church is “obsessed” with sex. Pick up, say, the encyclicals of Pope Leo XIII. I don’t think any one of them deals with sex, let alone homosexuality or contraception or any of that. Why? It simply wasn’t an issue until very recently. If we sat down a Catholic priest, an Orthodox priest, and a clergyman from all the Mainline Protestant groups from the time of Leo XIII, they would have plenty to disagree about but one thing they’d certainly agree on is that sodomy is immoral, marriage is only between a man and woman and so forth. Do the same thing today, and you’d probably only get an agreement on that with the priests-if they were both small “o” orthodox.

We have been historically very merciful to people who struggle with sins of the flesh. Yes, they are serious but no, that is not the end. Everyone has a chance to turn around until they die. The problem is that today, folks to not think they are sins or that “sin” even exists. When a sinner thinks he is not in need of forgiveness, when it is offered, he lashes out against it. For the modern people who think that anything goes, the Church’s mercy is “bigotry”.

Yes, I for one would much rather not have to screw around with all this cultural war crap. To me its horribly obvious just how contrary to nature sodomy or abortion are-they are non-issues to me. However, here we are where child murder is “legal” and sodomy is being pushed as something we need to “accept”. Its not a fight we picked, but we’ll fight to the bitter end and I have serene confidence that the gates of hell will not prevail.

Simon94022, you wrote this: ” Catholicism regards marriage as a great good, but unlike traditional Protestantism or the LDS, the Catholic Church does not regard it as the HIGHEST good, nor is it expected of everyone. In the Catholic worldview, all sexual activity outside of matrimony is morally wrong. But it’s not the greatest evil in the world, nor is it in any way shocking. Catholicism traditionally has been strict in its insistence on what the moral law is, but extremely relaxed (merciful, actually) in dealing with individuals.”

Marriage is a sacrament in the Catholic Church, but it isn’t a sacrament in most Protestant churches. Few if any Christians view sexual activity outside of matrimony as the greatest evil in the world. But if the Catholic Church didn’t greatly look down on that, then why would it require its priests and nuns to take a vow of celibacy in order to make them more holy?

You can only get to an “equal protection of the laws” argument if you assume that male and female are artificial cultural constructs.

Or if you make the assumption (as we have) that male and female are irrelevant under the law.

Way back in the 70s, Phyllis Schlaffley warned that gender equality would lead to gay couples marrying. She was probably right and all that remains is whether you consider that a good thing or a bad thing.

Personally, I’m an essentialist on questions of gender and sexuality. I really don’t buy social constructionist arguments on these points. Nevertheless, under the law, the categories don’t really exist. We can’t pass laws that affect only female drivers, but not male drivers. There can’t be different penalties for killing a woman than killing a man. And so on. As far as our laws are concerned, our specific genitalia are irrelevant.

Why should they suddenly become relevant in our marriage laws?

Marriage laws are designed to regulate, license, and tax (or negatively tax) one specific human relationship, one that inherently and intrinsically connects male to female.

Not in at least thirteen states. I have lived in just two states, both of which says that human relationship may consist of two men, two women, or one of each. Clearly the marriage laws in these states must be doing something else.

Marriage is … a set of laws regulating the relation of male to female.

Excepting the laws of Massachusetts, Connecticut, Iowa, Vermont, New Hampshire, New York, Washington, Maine, Maryland, Rhode Island, Delaware, Minnesota, California, and the District of Columbia.

Unless you’re saying that the marriages in those states are really marriages. It’s one or the other.

Finally, I agree with you that houses of worship can say whatever they like about homosexuality and same-sex marriage. My rabbi can be elated at marrying same-sex couples. The local Catholic bishop can forbid it in churches under his control and bemoan that it happens in places beyond his control.

dominic1955: The “cultural Catholics/Orthodox” of the past were still functional believers even if much of their motivation to practice was societal expectation.

But were they? It seems to me that the various heretical movements of the High Middle Ages couldn’t have attracted the numbers and energy (remember, almost all of southern France was Albigensian at one point) if the masses were mainly “functional believers”. That they went to their deaths for their beliefs (most notably at Montségur) indicates that even in Medieval –and I’m sure there were many who didn’t do so, but still were not sympathetic to the institutional Church to which they still nominally belonged.

[M]any peasants of old were stronger believers (in the true sense of the word) than some theologians and clerics of today.

On the other hand, if you read writings by clerics even as late as the Reformation, you hear no end of griping about the appalling religious ignorance of the masses. In some documents, such as legal proceedings, you hear the words of the peasants themselves, as recorded by scribes, and it’s entertaining (and religiously ill-informed) reading. I forget the source, but there’s a record of even a priest whose Latin was so bad that he began the Sign of the Cross with “In nomine patria et filiae….”, that is, “In the name of the Country , and of the Daughter….”

More broadly, I think a big difference in the Catholic view vs. the Protestant is the idea of the importance of relationship, as opposed to Protestantism, which tends to take a “me and God” approach. There is an interesting dispute going on between Wesley Hill and Eve Tushnet (often favorably quoted by Rod) and others on the one hand, and Daniel Mattson and company on the other. All of these are celibate homosexual Catholics living out the Church’s teaching. However, there is a huge divergence on what that should mean. The latter are taking the more or less traditional view of homosexuality as a “thorn in the flesh” that must be toughed out, as an unrequested defect that must be overcome. This group even dislikes the term “gay”, which they consider to be a sort of identity politics.

The former, such as Hill and Tushnet, while fully supporting the Catholic teaching on homosexuality. They argue that the Church is unwilling to see anything of value even in chaste relationships between gay people and that there ought to be a revival of vowed friendship for gay people–that is, a chaste way of acknowledging real relationships. She, Hill, and others also take thoughtful issue with the Church’s description of gay people as “disordered”, and argue for embracing the term “gay”, properly understood.

The point is that even within a totally orthodox, obedient framework, there’s a lot more room in real Catholic discourse for looking at different options for gay people than the current institutional Church wants to acknowledge. I think this current in Catholic thought, though perhaps not fully realized, is part of what’s behind the difference in attitudes here.

Re: But if the Catholic Church didn’t greatly look down on that, then why would it require its priests and nuns to take a vow of celibacy in order to make them more holy?

Wes, the answer to that is complicated and requires one to step outside the modern mindset (and by modern I mean everything going back to the Protestant Reformation)

First off monks and nuns take vows to renounce the world, even if they remain in it and serve it rather than retiring to a cloister or hermitage. That’s the whole point of monasticism. And you cannot have a family and renounce the world.
As for priests, I rather think that ill-advised and I would suggest the Eastern discipline (married men may be ordained) is a better ideal. In the Middle Ages several intertwined issues (an excess of asceticism, concerns about clerical families claiming church property as inheritance, and about how such families would be supported) led Rome to make celibacy mandatory for priests.
It’s not that sex is inherently sinful, but like other earthly appetites it can become an addiction that leads us from the path of salvation.

Or if you make the assumption (as we have) that male and female are irrelevant under the law.

What do you mean WE kimosabe? There are many things male and female are irrelevant to. They are irrelevant to qualifying for a driver’s license, they are irrelevant to owning property, they are irrelevant to being able to graduate summa cum laude. It is possible that on average, fewer women than men aspire to engineering degrees, but that’s no bar to the women who can complete one.

But there is nothing that male and female are more relevant to than sex. In fact, the distinction between male and female is essential to defining “homosexual.” If male and female are irrelevant, then there is no reason a gay man couldn’t have a gay relationship with a gay woman. This in turn is why male and female are highly relevant to our marriage laws, even the laws that license gay couples as marriage.

Way back in the 70s, Phyllis Schlaffley warned that gender equality would lead to gay couples marrying.

And you want to prove that crazy old dingbat right? You have a right to your own foolishness, but don’t expect everyone else to lemming-like follow your lead.

Not in at least thirteen states. I have lived in just two states, both of which says that human relationship may consist of two men, two women, or one of each. Clearly the marriage laws in these states must be doing something else.

We’ve been through this before JohnD, at some length. First, a semantical clarification: nobody argues that every pairing under discussion is a “human relationship,” but there are THOUSANDS of human relationships, most of which are not called “marriage.” You meant “marriage may consist of…” didn’t you?

IF the state chooses to license two willing gay men, or two willing lesbians, and call it “marriage,” then it IS a valid civil marriage. IF the legislature thinks they can do that and get re-elected, it means by and large the people of the state think these relationships are worthy of public notice, provision, and approbation. So be it.

I was responding to the argument that there is some constitutional DUTY to issue marriage licenses to any couple that wants their relationship to be called a marriage. There isn’t. Legislatures make value judgments all the time about what actions are going to be extolled by law, restrained by law, prohibited by law, or ignored by the law.

Marriage laws WERE WRITTEN to regulate one specific human relationship. As long as every man, and every woman, has equal option to enter into it, the fact that some people want something else does not deprive anyone of the equal protection of the laws.

If the legislature writes laws to regulate one or two more human relationships, they can do that. And now, under the law, I have as much right to marry another man in California as any man who wants to do that has. But I won’t. I have no idea what makes a man attractive. I have a hard time understanding why women put up with us.

“I would certainly hope Catholic women who wanted a child weren’t using birth control. That would kind of defeat the point.”

@Andersen and @Jesse Ewiak, the point is that some women are actually open to having children. Likewise many women choose not to be sexually active.

The “98% of Catholic women” stat implies that everyone — married and unmarried — is simultaneously sexually active and trying to avoid becoming pregnant. This is nonsense. “Sex and the City” is not the real world.

“But were they?” Well, that’s why I said we’ve always had a problem with having non-religious folks profess (in some way or another) to being Catholic. That said, I’d assert that the Albigensians were probably more “Catholic” than some cultural Catholics of today.

Coming back to a more recent memory, my ancestors were believers in that they held to Catholicism as they understood it from simple catechisms and what the priests preached on and they passed it on to their kids. When they were dying, they called for the priest. Their worldview was shaped by their worship. They were very much functional believers, but I wonder if they would have done so were there no societal pressure? Now, I’m one of the very few amongst the cousins that is still a practicing Catholic.

What changed? The Church (at one level or another) jettisoned all the cultural ties and pressures that ensured that even people who weren’t intellectually committed to the doctrinal truth of Catholicism remained Catholic. I don’t think I’m a “better” believer than my ancestors or that their faith was subpar, I just work differently. This is what I mean about the peasants being functional believers more than most “cultural Catholics” of today.

“The point is that even within a totally orthodox, obedient framework, there’s a lot more room in real Catholic discourse for looking at different options for gay people than the current institutional Church wants to acknowledge. I think this current in Catholic thought, though perhaps not fully realized, is part of what’s behind the difference in attitudes here.”

Actually, I would agree. However, having spent some time in the bowels of the “current institutional Church”, I would add a caveat. It is not that the “Man” is trying to hold anyone down. When we tore down the Tridentine Fortress to have our little aggiornamento whathaveyou, we got a lot more (bad) than we bargained for. The Church has modernists and heretics of all stripes at so many levels that any attempt to implement otherwise prudent reforms would be perverted. We’ve always had Judases but we are certainly at a low ebb as far as crappy times in Church history go. Like von Hildebrand would say, now is the kind of time we need to conserve what we have for a better future when a good reform is actually possible. When the Church and culture at large through much of the world was in a time of grave turbulence and seemingly everything was being turned on its head, that is when we should have battened down the hatches.

Trad as I am, I think it would be great to have more married clergy-minor orders on up to priesthood. I think we could have some sort of vowed friendship thing for people afflicted with homosexual temptations. Now is not the time for either as it would almost certainly by hijacked by the wrong people or implemented in the same extremely inept way the permanent diaconate was.

What do you mean WE kimosabe? There are many things male and female are irrelevant to. They are irrelevant to qualifying for a driver’s license, they are irrelevant to owning property, they are irrelevant to being able to graduate summa cum laude. It is possible that on average, fewer women than men aspire to engineering degrees, but that’s no bar to the women who can complete one.

By “we,” I mean the body politic of the United States. Through a series of laws and court decisions, the United States (that’s us) has determined that it is inappropriate to make distinctions on the basis of sex. And when there is a distinction made, it needs to meet a legitimate government interest.

If male and female are irrelevant, then there is no reason a gay man couldn’t have a gay relationship with a gay woman.

You seem to be mixing the romantic with the official. Yes, we get to discriminate on whatever basis we like for our personal relationships. A company can’t have a “no Asians” policy, though the owner may decide he doesn’t want to date an Asian.

Sex and sexual orientation of an applicant are irrelevant to the clerk at the DMV. Why should they be relevant to the clerk issuing marriage licences?

This is something you have never made a justification for. Instead you assert that marriages are essentially heterosexual, while at the same time acknowledging that in several states marriages are not essentially heterosexual. You can’t claim both things at once. Either your definition or California’s definition is wrong. And you keep saying that California has every right to recognize the marriages of same-sex couples.

As for Phyllis Schlaffley, that “crazy old dingbat” as you term her, is still an influential conservative activist. While I disagree with her on many points, I’m not going to dismiss her as “crazy.” (I save that for those who speak of conspiracies whereby gay people will be herding Christians into death camps: crazy talk). It was intellectually honest to bring her up. “Here’s what a prominent conservative has claimed for years.” Ms. Schlaffley’s longstanding claims points to an alternative to allowing same-sex marriage: bring back gender inequality. Make women legally subservient to their husbands.

I have no qualms about admitting when I think conservatives are right. I also have no qualms about admitting when I think liberals are wrong. Besides, from my point of view, “gender equality leads to same-sex marriage” is a good thing.

In the nineteenth century, a minister wrote that if women were allowed to own property, they would start looking for job, they would their earnings in their own bank accounts, and start arguing for the ability to divorce, and they would want to vote. Yeah, everything he said came true.

As for whether there is a constitutional duty to recognize same-sex marriages, here I think you are wrong. I agree with those (liberal and conservatives) who think we are about five years from a Supreme Court decision nationalizing same-sex marriage.

Once again, I dispute your reading of the history of marriage laws in the United States. I have read carefully and deeply into this history. The laws were passed due to attempts by same-sex couples to marry. Yeah, you can describe it as “keep marriage heterosexual,” but it’s the exact same thing as “prevent same-sex couples from marrying.” That was the goal. Not to benefit anyone, but to harm an unpopular group.

Harming unpopular groups is not a legitimate government activity (as concluded by the Supreme Court in Romer). Any law that can be described as “hurts some, benefits none” is certainly a bad law.

You have not established a legitimate government goal that is satisfied by preventing same-sex couples from marrying. How do marriage bans benefit anyone? (If you can answer that one, the Prop 8 people would like to hear from you, since it would probably give them Article III standing.)

Marriage laws WERE WRITTEN to regulate one specific human relationship.

The history shows otherwise. Marriage laws were written to exclude same-sex couples from marrying. Most states had written gender-neutral laws. They only put in gender restrictions when gay couples started trying to marry.

Legislatures make value judgments all the time about what actions are going to be extolled by law, restrained by law, prohibited by law, or ignored by the law.

And if these judgments are determined to serve no legitimate governmental interest, they are found unconstitutional. As has been noted many times, a ban on wearing hats comes down heavily on those whose religions mandate wearing hats. A law that said you had to remove your hat in a government building would be found unconstitutional.

And I ask again: what is the legitimate governmental interest which is served by a ban on same-sex marriage?

By “we,” I mean the body politic of the United States. Through a series of laws and court decisions, the United States (that’s us) has determined that it is inappropriate to make distinctions on the basis of sex. And when there is a distinction made, it needs to meet a legitimate government interest.

My dear sir, I had apprehensions that you had your august self confused with the body politic of the United States, but I didn’t want to level such a criticism unless you yourself confirmed it.

In general, I myself favor “equal rights for women.” But when you speak of the body politic, may I remind you that the “Equal Rights Amendment” has NEVER made it through congress, much less the state legislatures? Maybe you are too young to remember, but there were good reasons why, e.g., organized labor had some qualms about so flat and comprehensive a statement of “equality.” E.g., employers would expect 120 pound 5′ 2″ women to lift 50 pound lugs just like 220 lb 6’2″ men because “you’re equal now.”

There are of course ways to write protective laws in “gender neutral” ways, and I have fun propounding them. As I mentioned, one would be to provide that any man OR woman who is pregnant is entitled to pregnancy leave. If only women ever turn up pregnant, well, that’s not the law’s fault. (Although you might answer that it IS unfair, because anything a man CAN’T have the law should NOT PROVIDE for a woman). Similarly height and weight restrictions could be written into labor protection laws.

But it is patently false that “We The People,” through our legislatures or our courts, have EVER made a firm decision that NO distinctions should ever be made on the basis of sex. For example, it is entirely legal that bathrooms with more than one toilet or other facility may be segregated by sex, for good and obvious reason. There are real differences. I understand that some women are agitating that public restrooms for women should have a greater number of toilets than those for men, because women need more time and the rest rooms should accommodate more of them. I don’t mind if that becomes common practice — but it would technically be something other than perfect equality, at least by raw numbers.

Mixing the romantic with the official? My dear sir, marriage laws unavoidably mix the romantic with the official. That’s why sex becomes very salient to writing marriage laws. A company may be prohibited from having a “we don’t hire gays” policy (although possibly it would be appropriate to ban gay attendants at a Turkish bath), but we don’t have to license every fancy some human being may have, as a marriage.

Sex and sexual orientation of an applicant are irrelevant to the clerk at the DMV. Why should they be relevant to the clerk issuing marriage licences?

Ummm… because nobody uses their sexual organs to drive a car? Marriage, by origin, is all about sex. Automobiles, although they were found to have convenient secondary possibilities for sex, are all about driving from point A to point B. Men and women both have two hands, tow eyes, two feet, one butt to sit on… But they are not identical when it comes to sex. Therefore, the criteria for the clerks issuing licenses are quite different. That’s what the legal concept “similarly situated” is all about.

Your question makes a baseless eidetic transfer which exemplifies why I’ve been saying that the judicial opinions on this subject are more semantical than based on rigorous application of judicial precedent. The wording sounds similar, therefore, the law couldn’t possibly make a distinction merely because the relevant facts are utterly different.

Phyllis Schlafley’s logic is utterly wrong, and your attempt to use it only accentuates how wrong she is. Do you expect informed citizens to take seriously the notion that the alternative to gay marriage is restoration of unalloyed patriarchy? Are you suggesting that if marriage is defined as the union of a man and a woman, that, ipso facto, means that a woman cannot be an equal partner in her marriage? Listen to yourself…

Once again, I dispute your reading of the history of marriage laws in the United States. I have read carefully and deeply into this history. The laws were passed due to attempts by same-sex couples to marry.

Which marriage laws? The ones adopted by the Puritans in Massachusetts in the 17th century? The ones adopted by the legislature of Ohio in the early 19th century? Was anyone even thinking about “gay marriage” when those laws were passed? I don’t care how deeply you are thinking, you have no facts to support your deep thoughts. You are the reciprocal of the Platte River, a mile deep and an inch wide.

Now, let me anticipate… you mean the marriage laws passed in the late 20th century, AFTER some litigants started CLAIMING that existing marriage laws did, or should, encompass same-sex couples, THOSE marriage laws were attempts to prevent same-sex couples from marrying.

Church Lady made a similar argument recently. After mulling it over, I realized that it neatly boxes anyone who thinks marriage unites a man and a woman into a Catch-22. If the laws were written when nobody even thought about marriage being anything else, and are therefore not too precise about what everyone understood as axiomatic for centuries, then litigants can exploit the ambiguity. If anyone responds by saying, oh, it seems we need to be more precise about what was always meant, you can cry “Animus! Animus! You’re trying to stop gay coupled from marrying.” Cute strategy, but intellectually dishonest. The pre-existing laws, and what they meant when they were written, are not without standing.

Your intensive efforts to find some rational argument that marriage laws don’t mean what they always have meant brings me back to my first critique of the majority in the Goodridge decision. You can’t talk about whether someone has been deprived of marriage without first defining your terms. What IS marriage? The court allowed it to be treated as an abstraction… whatever it is, we have before us two defined demographics who want it. But wait, what IS marriage? Well, its a desirable bundle of benefits. Well then, why limit it to couples? Why shouldn’t single people have this bundle of benefits too? Well, because its about commitment, or maybe even about sex…

Marriage laws have a history, and the history is that from well before there was human society, civilization, or law, there was a distinct biological relationship between male and female. If not for the bonding of male and female, there would be no such thing as male and female. From the earliest human societies, people had to deal with how the two related to each other. Men and woman exist for reasons that having nothing to do with homosexuality, but if there were no men, or women, homosexuality would have no meaning. Are hydras gay? Are earthworms?

People also noticed that there were ways men could get their jollies from other men, and women from other women, and different societies have had different ways of dealing with that, from vicious suppression to incorporation into culture and religion. But until circa 1970, nobody ever thought of this as having anything to do with marriage.

Nobody has any legal duty to show a “lack of harm” or to answer the question “Why not?” Maybe we don’t want to be bothered even considering homosexuality. There is no constitutional right that every human relation and every human emotion shall be licensed, regulated and taxed. The fact that the chemistry of sexuality is imprecise and misfires in interesting ways is not a crime, but it is not a mandatory matter for the law to consider. And the law does not “ban gay marriage.” It merely refrains from establishing such a thing.

I recently read a piece in which a law professor noted that subsequent law and court decisions made the Equal Rights Amendment redundant. Even without the amendment, you can’t discriminate on the basis of sex. Yes, I’m aware that the ERA failed. Try putting out a job offer that says “male applicants only.”

Marriage, by origin, is all about sex.

Not true. Lack of consummation has historically been grounds for dissolving a marriage, many states have never required consummation for a marriage to be valid. As I’ve noted in the past, impotent elderly men may marry.

Besides, gay people have sex too. Or, at least they can.

But a marriage license is not a “sex license,” especially in an era when it seems impossible to criminalize out-of-wedlock sex.

Marriage is the uniting of two unrelated adults as next of kin.

You have continued to fail to show why gay people should be excluded from this. So let’s talk about restrooms.

There isn’t any law that prevents men from using a women’s restroom. A few years ago, the men’s room at my workplace was being renovated. During that time, one of the other restrooms was given over to the men. Now it’s back to being used only by the women in the company.

In any case, it’s reasonable to have separate men’s and women’s restrooms, due to questions of privacy and comfort. But had my company said, “the men’s room is out of order, hold it until you get home,” that would have been wrong. You offer a silly, easily disposed of argument.

Nobody has any legal duty to show a “lack of harm” or to answer the question “Why not?” Maybe we don’t want to be bothered even considering homosexuality.

Here you are dead wrong. In a society based on individual freedom (that’s us, in theory at least), the government must come up with a reason for its laws. And as gay people pay taxes, we are entitled to the full scope of legal protections and opportunities.

The libertarians who suggest the poison-pill solution, “let’s end all benefits to marriage and stop state registration of marriages altogether” have a equitable solution. It’s just that it’s like setting fire to your neighborhood because you don’t like your neighbors.

Let’s take something else. Let’s say a voter initiative passed a law that said left-handed people couldn’t drive. That would not stand up in court. There is no conceivable legitimate reason for such a law to exist. (Ditto if it were passed by a legislature.)

You keep saying that the people may vote in their preferences, but that really isn’t the way the law works.

And, yes, they are bans on same-sex marriage. The only state where you could say the state simply doesn’t recognize them is New Mexico. There’s a current lawsuit. Everywhere else, the laws were passed to ban same-sex couples. Yes, because a majority at the time felt that only opposite-sex couples should marry.

It’s a ban. It exists as a ban. And even if it were put in place for wholly noble reasons, it discriminates against a group. There is precedent that laws passed for good reasons but maintained for bad ones are unconstitutional.

Siarlys is right that the laws establishing marriage as between a man and a woman didn’t just arise due to efforts by gay couples to take advantage of laws that were perfectly consistent with gay marriage. The first major case, Baehr v. Lewin (Hawaii 1993), held that the proper construction of the statute in existence was that it DID define marriage as between one man and one woman, even though it hadn’t been necessary to state that (since it was considered obvious and indisputable) in precisely those words at the time it was drafted. From the case:

Rudimentary principles of statutory construction render manifest the fact that, by its plain language, HRS § 572–1 restricts the marital relation to a male and a female. “ ‘[T]he fundamental starting point for statutory interpretation is the language of the statute itself…. [W]here the statutory language is plain and unambiguous,’ ” we construe it according “ ‘to its plain and obvious meaning.’ ” Schmidt v. Board. of Directors of Ass’n of Apartment Owners of The Marco Polo Apartments, 73 Haw. 526, 531–32, 836 P.2d 479, 482 (1992); *564 In re Tax Appeal of Lower Mapunapuna Tenants Ass’n, 73 Haw. 63, 68, 828 P.2d 263, 266 (1992). The non-consanguinity requisite contained in HRS § 572–1(1) precludes marriages, inter alia, between “brother and sister,” “uncle and niece,” and “aunt and nephew[.]” The anti-bigamy requisite contained in HRS § 572–1(3) forbids a marriage between a “man” or a “woman” as the case may be, who, at the time, has a living and “lawful wife … [or] husband[.]” And the requisite, set forth in HRS § 572–1(7), requiring marriage ceremonies to be performed by state-licensed persons or entities expressly speaks in terms of “the man and woman to be married[.]” FN20 Accordingly, on its face and (as Lewin admits) as applied, HRS § 572–1 denies same-sex couples access to the marital status and its concomitant rights and benefits.

That case went on to hold that Hawaii’s constitution, which contained, in essence, an ERA that provided that distinctions based on sex be treated with strict scrutiny, nevertheless made that law unconstitutional. (Again, this was under the state constitution, not the US one.)

Hawaii then amended its constitutions.

The efforts by the various states beginning in the ’90s to defend against similar court rulings or arguments that the laws were worded ambiguously are similar. There’s simply no honest construction of the pre-existing state statutes that would make them consistent with gay marriage, as “marriage” was understood, when all of them were passed, to be between a man and woman. A quick glance at Black’s Law Dictionary (7th Ed. 2000), a common legal source for the meaning of terms used in statutes, has it as “a legal union between a man and a woman.” You can certainly look to the common and unambiguous meaning of terms when statutes were enacted, and all the old statutes were certainly based on an understanding that marriage did not include relationships between one man and another man or one woman and another woman, as there consistent application further demonstrates.

So the revisionist effort to claim that marriage statutes don’t include same-sex marriage only due to animus is just false and unfair. And it’s a really irritating argument to boot.

As for no distinctions in the law between men and women, clearly that’s not so. The current (and correct, IMO) SC interpretation of the 14th amendment is that distinctions based on sex are subject to heightened scrutiny, but not strict scrutiny (which race gets). That presupposes that there can be such distinctions (although they will be rare) and one place we’ve seen them are with respect to military service and the draft.

Beyond that, it’s not clear that the SC would see this as a matter of sex discrimination–they didn’t do so in Windsor–but of discrimination based on sexual orientation. So far there’s no heightened scrutiny for that type of discrimination. (I too expect that the SC is more likely to rule in favor of gay marriage than against, should they address the issue, but Windsor by no means compels that conclusion.)

“You are the reciprocal of the Platte River, a mile deep and an inch wide.”

This Nebraskan salutes you! Well put and very appropos.

John D-

“Marriage, by origin, is all about sex.
___
Not true. Lack of consummation has historically been grounds for dissolving a marriage, many states have never required consummation for a marriage to be valid. As I’ve noted in the past, impotent elderly men may marry.”

Wow. The whole point for men and women to get together in this thing called marriage was for the begeting heirs, that involves sex. Women and men (no matter how old or if something doesn’t work) have the potential for procreation even if its not possible to make use of that. Thus, they are at least ordered to marriage in a way that two men, two women, the local softball team, etc. can never be. The State (and the Church) only had interest in these sorts of unions. Two knights pledging friendly fealty to eachother might be great and nice, but its not marriage. No one would have even considered two men or two women being actually “married” until very recently.

Steph has addressed the question of the origin and meaning of marriage laws at great length, in well documented detail. To this I have nothing to add.

Marriage is the uniting of two unrelated adults as next of kin.

Says who? That sounds like an entry from JohnD’s Law Dictionary, which is not, last I knew, a well accepted reference admissible in courts of law. It is an interesting attempt to fill the vacuum of all the gay marriage cases since Goodridge, which simply failed to define marriage at all. JohnD has offered A definition which, IF accepted, would render all his arguments valid. Well, he would, wouldn’t he?

I will take a modest step back from Dominic1995’s argument about sex and marriage. It actually remains true to this day that inability to consummate is grounds for annulment — which suggests that this is a vital element of a marriage. But it is also true that the law does not INQUIRE of the TWO parties WHETHER they have consummated the marriage. That’s mostly because its a private matter, and because we don’t want our public institutions being so intrusive. But that leaves us with this: marriage, until we change the law for some reason, is about the relationship between a man and a woman, which is distinct from every other human relationship, and which is unique whether fully consummated or not.

Of course I disagree with the Hawaii court’s construction of its state constitution. MOST jobs can’t be advertised “men only.” However, I suspect that if one attempted to apply equal employment opportunity law on behalf of a gay man who wanted an “equal right” to be employed at a Nevada brothel, and then insisted that the next customer in the door accept him as the next “person” available, courts would have to rule that the customers are coming to buy time with a woman, and that is of the essence for the job.

In short, sex is irrelevant, except when it is very relevant. I’m not impressed by some treatise written by some law professor. That is, at best, available as persuasive authority, if a court should choose to rely on it, otherwise, its nothing. Frankly, for every law professor, there is an equal and opposite law professor.

There isn’t any law that prohibits men from using a woman’s restroom. Well, you try nonchalantly walking into the restroom reserved for members of the opposite sex during busy normal working hours, and see whether anyone calls the police.

In a society based on individual freedom (that’s us, in theory at least), the government must come up with a reason for its laws. And as gay people pay taxes, we are entitled to the full scope of legal protections and opportunities.

Nonsense. The first sentence is an ideal, not one I would unreservedly endorse, and more important, not a precept unreservedly enshrined in our constitution. But there is a reason for marriage laws. They regulate a volatile human relationship that is fundamental to human existence. Gay couples are not particularly fundamental, and may simply not be worth taking notice of. Gay people do not pay taxes AS gay people, and are not denied legal protections AS gay people by any marriage law. There is no law barring gay people from marrying. There are laws that define marriage AS the union of a man and a woman. That union is why marriage laws were written. No clerk will deny you a marriage license because you are gay. They will refuse to issue a marriage license if there isn’t a woman willing to marry you.

Marry a lesbian. Then you and she will be two unrelated adults united as next of kin. You don’t have to engage in sexual relations. Marriage isn’t about sex. You would have all the bundle of benefits that pertain to marriage. Where is the unequal protection?

Oh, you’d rather marry someone you WANT to have sex with? But marriage isn’t about sex. Why should you insist on marrying a man just because he’s the one you want to have sex with?

In short, your arguments, once examined, quickly reduce themselves to absurdity, because you made up whatever premises would sustain the conclusion you desire, but your premises don’t hold up. Sorry, life isn’t always fair.

You’ve mentioned 13 states where the law is what you would like it to be. Perhaps your fellow citizens in a number of other states will follow suit. I won’t lift a finger to stop them. I don’t care that much. I care about the precedent that would be set by giving the constitution infinite flexibility because somebody is whining about not getting whatever they want. I care about concocting a constitutional “right” to the approbation of the community. You have a right to peace, safety, quiet enjoyment, not to appreciation. Maybe some of your fellow citizens think what you do stinks. That’s their right. They can’t interfere, but they don’t have to love you either.

Can you write a definition of “marriage” that encompasses two women in Massachusetts, two men in Connecticut, and a man and a woman in Pennsylvania?

Your definition of “marriage AS the union of a man and a woman” doesn’t seem to cover all the possibilities.

It’s sort of like a definition of “dog” that takes greyhounds and borzois into account, but leaves out pugs.

My definition may not be perfect, but it seems to map to reality closer than yours. After all, you keep agreeing that same-sex marriages are legal marriages. But they’re also not “the union of a man and a woman.”

You can’t have it both ways. Either you’re one of the people who get in a huff and say “those will never be real marriages,” or you use a definition that acknowledges reality.

You strike me as a realist. I’ve also enjoyed many of your articulate defenses of laws prohibiting discrimination (of gay people and others). That’s why your insistence on an incomplete definition of “marriage” is so perplexing.

John D, thank you for your kind words. I have found that there are few people here I don’t sometimes agree with, and few good friends and allies I don’t sometimes lock horns with. That’s why I don’t buy the punditry labels about “liberals” (who don’t know beans about the historical meaning of liberalism, “conservatives” (who have nothing they wish to conserve, e.g. James Watt), etc. We’re unique ornery individuals, and we’re all a mixed bag.

Can you write a definition of “marriage” that encompasses two women in Massachusetts, two men in Connecticut, and a man and a woman in Pennsylvania?

No, I can’t. The first two states, and the latter state, have at least two different definitions of marriage. That’s called federalism. Each state doesn’t have to have a definition identical to every other state. I’m not arguing that any given definition has to be THE definition. I’m arguing that the definition 37 states have is a perfectly valid definition, and that it does not deny to anyone the equal protection of the laws.

I can’t even write a definition of “marriage” that encompasses two women, as a couple, and two men, as a couple. They are markedly different from each other. I suppose if I were to try, I would end up with something like “a contractual relationship between two individuals who engage in mutual sexual stimulation and otherwise intend to share their domicile and daily activities.” That seems to lack something. Which is one reason I’m not supportive of calling either two gay men, or two lesbians, a “marriage.”

I have become skeptical of open-ended claims to “freedom” which essentially deny that anything has any definition at all if the definition somehow inconveniences someone or other. It can get to be a bit like that schlocky old movie, “Wild in the Streets,” which posed, why shouldn’t fourteen-year-olds vote, only to be challenged by the question, what about ten year olds?

Is marriage as the union of a man and a woman a random cultural selection that somehow “just grew”? No, it is not. IT reflects some basic biology, that the species is divided into two sexes, not four, not six, two. The real objective physical and biological differences revolve around sexual function, which is natural, because there is no other reason for two sexes to exist.

I don’t have to say that marriage is ONLY or ESSENTIALLY about procreation to affirm that sexuality came to be for the purpose of procreation, and that the sexual process which naturally leads to procreation is fundamental to why we even exist as male and female.

Discrimination is not bad or wrong. Discrimination for irrational or irrelevant reasons is bad or wrong. Sexual orientation is not relevant to a person’s competence to be an engineer. But it is very relevant to matters of sexuality. A woman can work with men in an engineering firm, but she does not want her male fellow engineers watching her undress, either in the bathroom or when putting on special gear necessary for some forms of engineering work.

Another thing I have grown skeptical of is the notion that we all must “accept” and even “respect” each other. There is a certain minimum or mutual respect necessary for civil society. But that only extends to peace and quiet enjoyment. The demand for “marriage equality” and the demand that it be CALLED marriage, not to mention the demands that a photographer, a florist, a cake baker, a bed and breakfast operator, should cater to a “gay wedding,” are all about DEMANDING APPROVAL. I’m sorry, there is no constitutional right to approval.

The right to be left alone by the police powers of the state is deeply embedded in our constitutional jurisprudence. There is no right that everyone love you and share your happiness. And while you, I think, respect the right of any church to teach whatever it believes, and to act accordingly on its own property, we both know there are those who advance the whining narcissism that “I’m not truly equal as long as some churches can refuse to host my wedding.”

The strongest argument I know of for legal recognition of same-sex couples is the one Franklin Evans repeatedly makes, that if two people have made a mutual commitment to each other, their agreement should be legally enforceable in matters such as inheritance, hospital visitation, etc. That doesn’t require marriage. It could be done merely under existing contract law, but I have no doubt that many hospitals have blatantly refused to honor a legal contract.

One solution is to issue marriage licenses to two gay men or to two lesbians. But it is indeed difficult, as you point out, to come up with a coherent definition of marriage that encompasses all three relationships. Another is to establish a broad civil union or domestic partnership which doesn’t even partake of sexuality, simply the right of, as you said, any two unrelated individuals to make a mutual commitment and extend mutual rights to each other. That doesn’t have to be called marriage, and I see no particular reason it should be.

But it is indeed difficult, as you point out, to come up with a coherent definition of marriage that encompasses all three relationships.

Funny, I thought I accomplished that.

Okay, can you define “marriage” as it is practiced in the thirteen states that allow same-sex couples to marry?

You keep using a definition of “marriage” that is exclusive of how it is administered in those states, and proclaiming that it is “the definition.”

I’m saying that your definition doesn’t match the facts on the grounds. It’s like making a definition of “dog” that leads one to conclude that pugs are not dogs. The problem isn’t the pug, it’s that the definition is wrong.

I’m arguing that the definition 37 states have is a perfectly valid definition, and that it does not deny to anyone the equal protection of the laws.

Are you then arguing that the definition of the thirteen states is invalid?

I think it is easiest to solve the concerns of same-sex couples by allowing them to obtain marriage licenses, and offering them the full protection of the law. Everything that works around that is far more difficult and always ends up as a partial solution.

I remember reading an article profiling a wealthy male couple who felt that marriage wasn’t necessary. They had, however, spent tens of thousands of dollars to get fewer protections that what was provided to their married neighbors at a tiny fraction of the cost.

If you want to claim that same-sex couples can get all the protections of marriage through other means (and they can’t), then perhaps the state should reimburse them for all expenses beyond the cost of a marriage license.

I think it is easiest to solve the concerns of same-sex couples by allowing them to obtain marriage licenses, and offering them the full protection of the law.

It may well be. That is a public policy question. It is not a claim to constitutional right. There is no constitutional reason that the concerns of same-sex COUPLES need to be solved at all, or even noticed. Persons are entitled to the equal protection of the laws, not couples.

Are you then arguing that the definition of the thirteen states is invalid?

No. As a matter of fact, there is no reason that every state should define “marriage” in the same way. There is no constitutional reason a state could not define “marriage” as “the union of a man and woman as husband and wife.” There is no reason a state could not define marriage in the manner you have proposed, although in my seldom humble opinion, your definition is so broad that marriage would have no meaning at all.

The thirteen states that somehow or other offer marriage licenses to same-sex couples have defined marriage to their own satisfaction. In those states, whatever the law says, that is what civil marriage is.

Some states might define marriage as “the union of a man and woman as husband and wife, or, the union of two men or two women who intend to live together in a similar manner because they are sexually attracted to individuals of their own sex.” That would be my preference, if a state is going to license same-sex couples at all.